No man is above the law and no man is below it; nor do we ask any man’s permission when we ask him to obey it – Theodore Roosevelt
The Rule of Law follows from the idea that truth, and therefore law, is based upon fundamental principles which can be discovered, but which cannot be created through an act of will.
The most important application of the Rule of Law is the principle that governmental authority is legitimately exercised only in accordance with written and publicly disclosed laws. These laws are adopted and enforced in accordance with established procedural steps that are referred to as due process. The principle is intended to be a safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule. Thus, the Rule of Law is hostile both to dictatorship and to anarchy.
The Rule of Law does not imply blind obedience to rules made by those in governance. It provides that the law must be applied to all, in an open and fair manner, in a defined process to ensure equality. It requires transparency of our legal system together with a strong, independent judiciary to impartially enforce the laws. But once all due process has been followed, it requires you to respect the Rule of Law and, by implication, any court and judgment made under it.
The former President Jacob Zuma debacle threatened the Rule of Law. The very notion that any citizen of South Africa could rebuff a judgment handed down by the Constitutional Court of South Africa, the highest court we have, was a direct attack on the foundation of our judicial system and threatened the trais politica (the philosophy that there must be a strict separation between three independent powers in every nation i.e. for legislation, executive and judicial) of our country.
As part of the application of the Rule of Law, transparency of our judicial system is required. But a lack of understanding of the process, or more accurately, the lack of educating our citizens of the process, can lead to the current situation in South Africa where citizens are under the mistaken impression that former President Jacob Zuma did not receive a trial, and can therefore not be sentenced. Although this article is not focused on explaining how contempt of court works or rescission of judgment applications, it is necessary for legal practitioners to take the time to explain these processes in order to ensure all citizens, irrespective of their background, knows and understands the outcome and procedures of legal proceedings. This is a duty of all legal practitioners and will promote the fundamentals of the Rule of Law. But there is also a duty on each citizen to take the time to first understand the process before voicing their opinions.
As a final note on a very sensitive subject. When you live and work in the territorial boundaries of South Africa, you are effectively stating that you submit and are bound to the laws governing this sovereign state. The same laws that are made by South African citizens for South African citizens.
“As citizens of this democracy, you are the rulers and the ruled, the lawgivers and the law-abiding, the beginning and the end” – Adlai Stevenson I.
Respect the Rule of Law, regardless of who you are.
De Rebus – Reconsidering final judgments – the injustice in justice dated 1 February 2018 written by Ndivhuwo Ishmel Moleya